by SARA MALKANI
Last year, the Supreme Court of Pakistan affirmed that a woman is entitled to dissolve her marriage on the grounds that her husband, without her permission, married another woman. Recently, the Council of Islamic Ideology released a statement rejecting this decision, asserting that it is against Islamic law to permit a woman to dissolve her marriage because she did not consent to her husband’s marriage to another woman. The CII is an advisory body and cannot overrule the Supreme Court, but is deemed to be an authority on the requirements of Islamic law.
The fact that in 2024, the Supreme Court had to author a detailed judgement to clarify very straightforward statutory provisions in the Muslim Family Law Ordinance (MFLO), 1961, and the Dissolution of Muslim Marriages Act, 1939 — which was then repudiated by the CII — is an indication of the manufactured confusion around family laws in Pakistan.
Why does this confusion persist? Muslim personal law covers matters related to marriage, divorce and inheritance for the majority of Pakistan’s population. Personal law is partially codified in the form of statutes derived from religious jurisprudence. Courts and religious bodies often misinterpret the plain meaning of statutes to conform to their own views of Islamic jurisprudence. For example, courts have repeatedly misread the 1961 ordinance’s provisions on talaq, often refusing to enforce the notice and registration requirements in the law. They also tend to fill in the gaps in codified laws with conservative interpretations of Islamic law.
The origins of Muslim personal law lie in the British colonial era. As the colonial government began to introduce legislation regulating political and economic spheres, it carved out exceptions for matters related to marriage, divorce and inheritance, declaring that these would be dealt with in accordance with the custom and religious laws of each community.
The gap between codified law and court interpretations continue to create uncertainty.
Muslim political groups were keen to secure the primacy of the Sharia over custom in matters of family law and inheritance. In 1937, Muslims secured legislation that declared that personal law derived from the Sharia alone rather than custom would govern family matters and inheritance for Muslims.
Prior to independence, Muslims secured another codified law — the Dissolution of Muslim Marriages Act passed in 1939. While this law established the right of Muslim women to dissolve their marriage in certain circumstances, the motivation behind the law was not the promotion of women’s rights. In fact, it was passed to prevent Muslim women from renouncing their faith and marrying non-Muslims. Prior to this law, Muslim women seeking to end a marriage could only do so after they converted to another religion, which would lead to the automatic termination of their marriage to a Muslim man. This would also enable Muslim women to marry outside their faith after their marriage to the Muslim man stood terminated.
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